WASHINGTON – Reporters covering trials of accused terrorists at Guantanamo Bay will have their first-ever face-to-face chance Monday to air their complaints about the U.S government’s restrictive rules, which journalists say make it nearly impossible for the public to follow the proceedings.
Long-simmering tensions that began during the Bush administration boiled over in May when Pentagon officials barred four reporters from future coverage for naming a witness whose identity military commission prosecutors wanted kept secret, even though it had been publicly known for several years.
Former Army Sgt. Joshua Claus, who interrogated Canadian Omar Khadr in Afghanistan, had been court-martialed and convicted for detainee abuse. That was a critical fact in the May hearing, where Khadr’s attorneys were arguing that he’d been coerced into making incriminating statements when he, then just 15 and badly wounded, was interrogated, first at Bagram Air Base in Afghanistan and later at Guantanamo.
The Pentagon’s public affairs department made the decision to ban the journalists without any kind of a hearing and without notifying the journalists that the restriction was being contemplated.
Challenged on the ban’s legality, the Pentagon eventually relented on three of the four reporters, but not before a long list of complaints burst into the open. They included charges that ever-changing rules cut off reporters’ access to defense lawyers, prohibited photographs of even the most banal scenes and let official minders monitor reporters’ Internet transmissions, phone calls and even trips to the bathroom.
The dispute also brought to light a practice that reporters complain hampers their coverage of what takes place in the courts: the routine denial of essential and unclassified court records.
Reporters and a leading First Amendment lawyer said the practice raises a fundamental question: whether the military-run trials – known as military commissions – are open to the public as Congress required them to be under the 2007 and 2009 Military Commissions acts.
The Pentagon’s Office of Military Commissions, for example, doesn’t make public the court’s unclassified docket, which lists all motions and submissions made by government prosecutors or the officially appointed government defense. The motions themselves often aren’t released until months after they’ve been argued in court.
Australian David Hicks was due to stand trial in March 2007 but instead was sent home in a deal in which he pleaded guilty. Before that deal became public, the defense filed a motion of misconduct against the chief prosecutor that wasn’t revealed for at least six months, according to New York lawyer David Schulz, who’s representing McClatchy Newspapers and five other major U.S. news organizations in their battle with the Pentagon.
“There had been a whole series of motions in the case … that might have had some bearing on the willingness to make this plea deal. All of that should have been open, should have been known at that time,” Schulz recently told an audience at the National Press Club in Washington.
Schulz has been trying to get the Pentagon to modify the way such court documents are handled for three years.
In 2007, Schulz asked for an expedited procedure to make motions publicly available. Neither he nor the reporters could make their request directly, so Michael Berrigan, who at the time was the No. 2 military defense lawyer at Guantanamo, sent it to two judges.
“There’s no procedure. It’s a closed system,” Berrigan told the press club gathering. “The way things are filed is by e-mail, electronically, and the press and outside law firms have no ability to do that.”
One judge ruled that the media had no standing to submit a request, but the second agreed to review it. “We didn’t find out till months later,” Schulz said, “because it was said in one of those closed conferences, and the parties weren’t allowed to tell us what the judge had done.”
After the Obama administration took office, Schulz said, he raised the issue with the Pentagon in three letters in 2009. A top Pentagon aide responded in January and suggested a meeting, but despite repeated requests, a date was never set.